14 CFR Part 16 — Rules of Practice for Federally-Assisted Airport Enforcement Proceedings

Federal Aviation Administration, DOT § 16.1 Subpart E—Proposed Orders of ceedings are instituted by order of the Compliance FAA or by filing a complaint with the FAA under the following authorities: 16.109 Orders terminating eligibility for (1) 49 U.S.C. 40103(e), prohibiting the grants, cease and desist orders, and other grant of exclusive rights for the use of compliance orders.

any landing area or air navigation fa- cility on which Federal funds have Subpart F—Hearings been expended (formerly section 308 of 16.201 Notice and order of hearing.

the Federal Aviation Act of 1958, as 16.202 Powers of a hearing officer.

amended).

16.203 Appearances, parties, and rights of (2) Requirements of the Anti-Head parties.

Tax Act, 49 U.S.C. 40116.

16.207 Intervention and other participation.

16.209 Extension of time. (3) The assurances and other Federal 16.211 Prehearing conference.

obligations contained in grant-in-aid 16.213 Discovery.

agreements issued under the Federal 16.215 Depositions.

Airport Act of 1946, 49 U.S.C. 1101 et seq.

16.217 Witnesses.

(repealed 1970).

16.219 Subpoenas.

(4) The assurances and other Federal 16.221 Witness fees.

16.223 Evidence. obligations contained in grant-in-aid 16.225 Public disclosure of evidence.

agreements issued under the Airport 16.227 Standard of proof.

and Airway Development Act of 1970, 16.229 Burden of proof.

as amended, 49 U.S.C. 1701 et seq.

16.231 Offer of proof.

(5) The assurances and other Federal 16.233 Record.

obligations contained in grant-in-aid 16.235 Argument before the hearing officer.

agreements issued under the Airport 16.237 Waiver of procedures.

16.241 Initial decisions, orders, and appeals. and Airway Improvement Act of 1982 16.243 Consent orders.

(AAIA), as amended and recodified, 49 16.245 Associate Administrator review after U.S.C. 47101 et seq., specifically section a hearing.

511(a), 49 U.S.C. 47107, and 49 U.S.C.

47133.

Subpart G—Judicial Review (6) Section 505(d) of the Airport and 16.247 Judicial review of a final decision and Airway Improvement Act of 1982, and order.

the requirements concerning civil rights and/or Disadvantaged Business Subpart H—Ex Parte Communications Enterprise (DBE) issues contained in 49 U.S.C. 47107(e) and 49 U.S.C. 47113; 49 16.301 Prohibited ex parte communications.

U.S.C. 47123; 49 U.S.C. 322, as amended; 16.303 Procedures for handling ex parte communications. 49 CFR parts 23 and/or 26; and/or grant 16.305 Requirement to show cause and impo- assurance 30 and/or grant assurance 37.

sition of sanction.

(7) Obligations contained in property A UTHORITY : 49 U.S.C. 106(g), 322, 1110, 1111, deeds for property transferred pursuant 1115, 1116, 1718(a) and (b), 1719, 1723, 1726, 1727, to section 16 of the Federal Airport Act 40103(e), 40113, 40116, 44502(b), 46101, 46104, (49 U.S.C. 1115), section 23 of the Air- 46110, 47104, 47106(e), 47107, 47108, 47111(d), port and Airway Development Act (49 47122, 47123–47125, 47133, 47151–47153, 48103.

U.S.C. 1723), or section 516 of the Air- S OURCE : Docket No. 27783, 61 FR 54004, Oct.

port and Airway Improvement Act (49 16, 1996, unless otherwise noted.

U.S.C. 47125).

(8) Obligations contained in property Subpart A—General Provisions deeds for property transferred under the Surplus Property Act (49 U.S.C.

§ 16.1 Applicability and description of 47151–47153).

part.

(b) Other agencies. Where a grant as- (a) General. The provisions of this surance concerns a statute, executive part govern all Federal Aviation Ad- order, regulation, or other authority ministration (FAA) proceedings involv- that provides an administrative proc- ing Federally-assisted airports, except ess for the investigation or adjudica- for complaints or requests for deter- tion of complaints by a Federal agency mination filed with the Secretary other than the FAA, persons shall use under 14 CFR part 302, whether the pro- the administrative process established 14 CFR Ch. I (1–1–25 Edition) § 16.3 by those authorities. Where a grant as- Agency employee means any employee surance concerns a statute, executive of the FAA.

order, regulation, or other authority Associate Administrator means the that enables a Federal agency other FAA Associate Administrator for Air- than the FAA to investigate, adju- ports or a designee. For the purposes of dicate, and enforce compliance under this part only, Associate Adminis- those authorities on its own initiative, trator also means the Assistant Ad- the FAA may defer to that Federal ministrator for Civil Rights or a des- agency.

ignee for complaints that the FAA As- (c) Other enforcement. If a complaint sociate Administrator for Airports or action initiated by the FAA involves transfers to the Assistant Adminis- a violation of the 49 U.S.C. subtitle VII trator for Civil Rights.

or FAA regulations, except as specified Complainant means the person sub- in paragraphs (a)(1) and (a)(2) of this mitting a complaint.

section, the FAA may take investiga- Complaint means a written document tive and enforcement action under 14 meeting the requirements of this part CFR part 13, ‘‘Investigative and En- and filed under this part: forcement Procedures.’’ (1) By a person directly and substan- (d) Effective date. This part applies to tially affected by anything allegedly a complaint filed with the FAA and to done or omitted to be done by any per- an investigation initiated by the FAA son in contravention of any provision on or after December 16, 1996.

of any Act, as defined in this section, as to matters within the jurisdiction of [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16–1, 78 FR 56141, Sept. 12, the Administrator, or 2013] (2) By a person under 49 CFR 26.105(c) against a recipient of FAA funds al- § 16.3 Definitions.

leged to have violated a provision of 49 Terms defined in the Acts are used as CFR parts 23 and/or 26.

so defined. As used in this part: Decisional employee means the Admin- Act means a statute listed in § 16.1 istrator, Deputy Administrator, Asso- and any regulation, agreement, or doc- ciate Administrator, Director, hearing ument of conveyance issued or made officer, or other FAA employee who is under that statute. or who may reasonably be expected to be involved in the decisional process of Administrator means the Adminis- the proceeding.

trator of the FAA.

Director means the Director of the Agency means the FAA.

FAA Office of Airport Compliance and Agency attorney means the Deputy Management Analysis, or a designee.

Chief Counsel; the Assistant Chief For the purposes of this part only, Di- Counsel and attorneys in the Airports/ rector also means the Deputy Assistant Environmental Law Division of the Of- Administrator for Civil Rights for com- fice of the Chief Counsel; the Assistant plaints that the Director of the FAA Chief Counsel and attorneys in an FAA Office of Airport Compliance and Man- region or center who represent the agement Analysis transfers to the Dep- FAA during the investigation of a com- uty Assistant Administrator for Civil plaint or at a hearing on a complaint, Rights or designee.

and who prosecute on behalf of the Electronic filing means the process of FAA, as appropriate. An agency attor- sending electronic mail (email) to the ney shall not include the Chief Coun- FAA Part 16 Docket Clerk, with sel; the Assistant Chief Counsel for scanned documents attached, as a Litigation, or any attorney on the staff Portable Document Format (PDF) file.

of the Assistant Chief Counsel for Liti- gation, who advises the Associate Ad- Ex parte communication means an oral ministrator regarding an initial deci- or written communication not on the sion of the hearing officer or any ap- public record with respect to which peal to the Associate Administrator or reasonable prior notice to all parties is who is supervised in that action by a not given, but it shall not include re- person who provides such advice in an quests for status reports on any matter action covered by this part. or proceeding covered by this part, or Federal Aviation Administration, DOT § 16.5 communications between FAA employ- Airway Development Act or Airport ees who participate as parties to a and Airway Improvement Act; hearing pursuant to 16.203(b) of this (2) Any private owner of a public-use part and other parties to a hearing.

airport that has received financial as- Hearing officer means an attorney sistance from the FAA for such airport; designated by the Deputy Chief Coun- and sel in a hearing order to serve as a (3) Any person to whom the Federal hearing officer in a hearing under this Government has conveyed property for part. The following are not designated airport purposes under section 13(g) of as hearing officers: the Chief Counsel the Surplus Property Act of 1944, as and Deputy Chief Counsel; the Re- amended.

gional or Center Counsel and attorneys Writing or written includes paper doc- in the FAA region or center in which uments that are filed and/or served by the noncompliance has allegedly oc- mail, personal delivery, facsimile, or curred or is occurring; the Assistant email (as attached PDF files).

Chief Counsel and attorneys in the Air- ports and Environmental Law Division [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as of the FAA Office of the Chief Counsel; amended at Amdt. 16–1, 78 FR 56141, Sept. 12, and the Assistant Chief Counsel and at- 2013] torneys in the Litigation Division of the FAA Office of Chief Counsel. § 16.5 Separation of functions.

Initial decision means a decision made (a) Proceedings under this part, in- by the hearing officer in a hearing cluding hearings under subpart F of under subpart F of this part.

this part, will be prosecuted by an Mail means U.S. first class mail; U.S.

agency attorney.

certified mail; and U.S. express mail.

(b) After issuance of an initial deter- Unless otherwise noted, mail also mination in which the FAA provides means electronic mail containing PDF the opportunity for a hearing, an agen- copies of pleadings or documents re- cy employee engaged in the perform- quired herein.

ance of investigative or prosecutorial Noncompliance means anything done functions in a proceeding under this or omitted to be done by any person in part will not, in that case or a factu- contravention of any provision of any Act, as defined in this section, as to ally related case, participate or give matters within the jurisdiction of the advice in an initial decision by the Administrator.

hearing officer, or a final decision by Party means the complainant(s) and the Associate Administrator or des- the respondent(s) named in the com- ignee on written appeal, and will not, plaint and, after an initial determina- except as counsel or as witness in the tion providing an opportunity for hear- public proceedings, engage in any sub- ing is issued under § 16.31 and subpart E stantive communication regarding that of this part, the agency.

case or a related case with the hearing Person in addition to its meaning officer, the Associate Administrator on under 49 U.S.C. 40102(a)(33), includes a written appeal, or agency employees public agency as defined in 49 U.S.C.

advising those officials in that capac- 47102(a)(15).

ity.

Personal delivery means same-day (c) The Chief Counsel, the Assistant hand delivery or overnight express de- Chief Counsel for Litigation, or an at- livery service.

torney on the staff of the Assistant Respondent means any person named Chief Counsel for Litigation advises in a complaint as a person responsible the Associate Administrator regarding for noncompliance.

an initial decision, an appeal, or a final Sponsor means: decision regarding any case brought (1) Any public agency which, either under this part.

individually or jointly with one or more other public agencies, has re- ceived Federal financial assistance for airport development or planning under the Federal Airport Act, Airport and

14 CFR Ch. I (1–1–25 Edition) § 16.11 26; and/or grant assurance 30 and/or Subpart B—General Rules Appli- grant assurance 37.

cable to Complaints, Pro- ceedings Initiated by the FAA, [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16–1, 78 FR 56142, Sept. 12, and Appeals 2013] § 16.11 General processes.

§ 16.13 Filing of documents.

(a) Under the authority of 49 U.S.C.

Except as otherwise provided in this 40113 and 47121, the Director may con- part, documents shall be filed with the duct investigations, issue orders, and FAA during a proceeding under this take such other actions as are nec- part as follows: essary to fulfill the purposes of this (a) Filing address. Documents filed part. This includes the extension of under this Part shall be filed with the any time period prescribed, where nec- Office of the Chief Counsel, Attention: essary or appropriate for a fair and FAA Part 16 Docket Clerk, AGC–600, complete consideration of matters be- Federal Aviation Administration, 800 fore the agency, prior to issuance of Independence Avenue SW., Washington, the Director’s Determination.

DC 20591. Documents to be filed with a (b) Notwithstanding any other provi- hearing officer shall be filed at the ad- sion of this part, upon finding that cir- dress and in the manner stated in the cumstances require expedited handling hearing order.

of a particular case or controversy, the (b) Date and method of filing. Filing of Director may issue an order directing any document shall be by personal de- any of the following prior to the livery or mail as defined in this part, issuance of the Director’s Determina- by facsimile (when confirmed by filing tion: on the same date by one of the fore- (1) Shortening the time period for going methods), or electronically as set any action under this part consistent forth in paragraph (h) of this section.

with due process; Unless the date is shown to be inac- (2) If other adequate opportunity to curate, documents filed with the FAA respond to pleadings is available, shall be deemed to be filed on the date eliminating the reply, rebuttal, or of personal delivery, on the mailing other actions prescribed by this part; date shown on the certificate of serv- (3) Designating alternative methods ice, on the date shown on the postmark of service; or if there is no certificate of service, on (4) Directing such other measures as the send date shown on the facsimile may be required.

(provided filing has been confirmed (c) Other than those matters con- through one of the foregoing methods), cerning a Corrective Action Plan, the or on the mailing date shown by other jurisdiction of the Director terminates evidence if there is no certificate of upon the issuance of the Director’s De- service and no postmark. Unless the termination. All matters arising dur- date is shown to be inaccurate, docu- ing the appeal period, such as requests ments filed electronically shall be for extension of time to make an ap- deemed to be filed on the date shown peal, will be addressed by the Associate on the certificate of service or, if none, Administrator.

the date of electronic transmission to (d) The Director may transfer to the the last party required to be served.

FAA Deputy Assistant Administrator for Civil Rights or Office of Civil (c) Number of copies. With the excep- Rights designee the authority to pre- tion of electronic filing or unless oth- pare and issue Director’s Determina- erwise specified, an executed original tions pursuant to § 16.31 for complaints and three copies of each document alleging violations of section 505(d) of shall be filed with the FAA Part 16 the Airport and Airway Improvement Docket Clerk. One of the three copies Act of 1982, and the requirements con- shall not be stapled, bound or hole- cerning civil rights and/or Disadvan- punched. Copies need not be signed, but taged Business Enterprise (DBE) issues the name of the person signing the contained in 49 U.S.C. 47107(e) and 49 original shall be shown. If a hearing U.S.C. 47113; 49 U.S.C. 47123; 49 U.S.C. order has been issued in the case, one 322, as amended; 49 CFR parts 23 and/or of the three copies shall be filed with

Federal Aviation Administration, DOT § 16.13 the hearing officer unless otherwise (an) attachment(s) of (a) PDF file(s) of prescribed by the hearing officer. the required pleading to the FAA (d) Form. Documents filed under this Docket Clerk, and the person des- part shall: ignated in paragraph (h)(3) of this sec- (1) Be typewritten or legibly printed; tion.

(2) Include, in the case of docketed (2) The subject line of the email must proceedings, the docket number of the contain the names of the complainant proceeding on the front page; and and respondent, and must contain the (3) Be marked to identify personal, FAA docket number (if assigned). The privileged or proprietary information.

size of each email must be less than 10 Decisions for the publication and re- MB. Email attachments containing lease of these documents will be made executable files (e.g., .exe and .vbs in accordance with 5 U.S.C. 552 and 49 files) will not be accepted.

CFR part 7.

(3) The email address at which the (e) Signing of documents and other pa- parties may file the documents de- pers. The original of every document scribed in this section is 9-AWA-AGC- filed shall be signed by the person fil- Part-16@faa.gov. No acknowledgement ing it or the person’s duly authorized or receipt will be provided by the FAA representative. The signature shall to parties using this method. A party serve as a certification that the signer filing electronically as described in has read the document and, based on this section must provide to the FAA reasonable inquiry and to the best of Part 16 Docket Clerk and the opposing the signer’s knowledge, information, party an email address of the person and belief, the document is— designated by the party to receive (1) Consistent with this part; pleadings.

(2) Warranted by existing law or that (4) By filing a pleading or document a good faith argument exists for exten- electronically as described in this sec- sion, modification, or reversal of exist- tion, a party waives the rights under ing law; and this part for service by the opposing (3) Not interposed for any improper party and the FAA by methods other purpose, such as to harass or to cause than email. If a party subsequently de- unnecessary delay or needless increase cides to ‘‘opt-out’’ of electronic filing, in the cost of the administrative proc- that party must so notify the FAA ess.

Part 16 Docket Clerk and the other (f) Designation of person to receive serv- party in writing, from which time the ice. The initial document filed by any FAA and the parties will begin serving person shall state on the first page the the opting-out party in accordance name, physical address, telephone with §§ 16.13 and 16.15. This subsection number, facsimile number, if any, and only exempts the parties from the fil- email address, if filing electronically, ing and service requirements in of the person(s) to be served with docu- § 16.13(a) (with the exception that ments in the proceeding. If any of these ‘‘Documents to be filed with a hearing items change during the proceeding, officer shall be filed at the address and the person shall promptly file notice of in the manner stated in the hearing the change with the FAA Part 16 Dock- order.’’), the method of filing require- et Clerk and the hearing officer and ments in § 16.13(b), and the number of shall serve the notice on all parties.

documents requirements in § 16.13(c).

(g) Docket numbers. Each submission (i) Internet accessibility of documents identified as a complaint under this filed in the Hearing Docket. (1) Unless part by the submitting person will be protected from public disclosure, all assigned a docket number.

documents filed in the Hearing Docket (h) Electronic filing. (1) The initial are accessible through the Federal complaint may be served electronically Docket Management System (FDMS): upon the respondent only if the re- http://www.regulations.gov. To access a spondent has previously agreed with particular case file, use the FDMS the complainant in writing to partici- number assigned to the case.

pate in electronic filing. Documents may be filed under this Part electroni- (2) Determinations issued by the Di- cally by sending an email containing rector and Associate Administrator in

14 CFR Ch. I (1–1–25 Edition) § 16.15 Part 16 cases, indexes of decisions, con- turned as undeliverable, unclaimed, or tact information for the FAA Hearing refused; or Docket, the rules of practice, and other (3) When the party serving the docu- information are available on the FAA ment electronically has a confirmation statement demonstrating that the Office of Airports’ Web site at: http:// email was properly sent to a party cor- part16.airports.faa.gov/index.cfm.

rectly addressed.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as (e) Date of service. The date of service amended at Amdt. 16–1, 78 FR 56142, Sept. 12, shall be determined in the same man- 2013] ner as the filing date under § 16.13(b).

§ 16.15 Service of documents on the [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as parties and the agency.

amended at Amdt. 16–1, 78 FR 56143, Sept. 12, 2013] Except as otherwise provided in this part, documents shall be served as fol- § 16.17 Computation of time.

lows: This section applies to any period of (a) Whom must be served. Copies of all time prescribed or allowed by this part, documents filed with the FAA Part 16 by notice or order of the hearing offi- Docket Clerk shall be served by the cer, or by an applicable statute.

persons filing them on all parties to (a) The date of an act, event, or de- the proceeding. A certificate of service fault, after which a designated time pe- shall accompany all documents when riod begins to run, is not included in a they are tendered for filing and shall computation of time under this part.

certify concurrent service on the FAA (b) The last day of a time period is and all parties. Certificates of service included in a computation of time un- shall be in substantially the following less it is a Saturday, Sunday, or legal form: holiday for the FAA, in which case, the I hereby certify that I have this day served time period runs until the end of the the foregoing [name of document] on the fol- next day that is not a Saturday, Sun- lowing persons at the following addresses, day, or legal holiday.

facsimile numbers (if also served by fac- (c) Whenever a party has the right or simile), or email address (if served electroni- is required to do some act within a pre- cally in accordance with § 16.13(h)), by [speci- scribed period after service of a docu- fy method of service]: ment upon the party, and the docu- [list persons, addresses, facsimile numbers, ment is served on the party by first email addresses (as applicable)] class mail or certified mail, 5 days Dated this _ day of _ , 20 _ .

shall be added to the prescribed period.

[signature], for [party] [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as (b) Method of service. Except as oth- amended at Amdt. 16–1, 78 FR 56143, Sept. 12, erwise agreed by the parties and, if ap- 2013] plicable, the hearing officer, the meth- § 16.19 Motions.

od of service is the same as set forth in § 16.13(b) for filing documents.

(a) General. An application for an (c) Where service shall be made. Serv- order or ruling not otherwise specifi- ice shall be made to the persons identi- cally provided for in this part shall be fied in accordance with § 16.13(f). If no by motion. Unless otherwise ordered by such person has been designated, serv- the agency, the filing of a motion will ice shall be made on the party.

not stay the date that any action is (d) Presumption of service. There shall permitted or required by this part.

be a presumption of lawful service— (b) Form and contents. Unless made (1) When acknowledgment of receipt during a hearing, motions shall be is by a person who customarily or in made in writing, shall state with par- the ordinary course of business re- ticularity the relief sought and the ceives mail at the address of the party grounds for the relief sought, and shall or of the person designated under be accompanied by affidavits or other § 16.13(f); evidence relied upon. Motions intro- (2) When a properly addressed enve- duced during hearings may be made lope, sent to the most current address orally on the record, unless the hearing submitted under § 16.13(f), has been re- officer directs otherwise.

Federal Aviation Administration, DOT § 16.23 (c) Answers to motions. Except as oth- fice, FAA Regional Airports Division erwise provided in this part, or except responsible for administering financial when a motion is made during a hear- assistance to the sponsor, or the FAA ing, any party may file an answer in Office of Civil Rights will be available support of or in opposition to a motion, upon request to assist the parties with accompanied by affidavits or other evi- informal resolution.

dence relied upon, provided that the (b) Except for complaints filed under answer to the motion is filed within 10 49 CFR 26.105(c), a complaint will be days after the motion has been served dismissed under § 16.27 unless the per- upon the person answering, or any son or authorized representative filing other period set by the hearing officer.

the complaint certifies that: Where a motion is made during a hear- (1) The complainant has made sub- ing, the answer and the ruling thereon stantial and reasonable good faith ef- may be made at the hearing, or orally forts to resolve the disputed matter in- or in writing within the time set by the formally prior to filing the complaint; hearing officer.

and (d) Deferred actions on motions. A rul- (2) There is no reasonable prospect ing on a motion made before the time for practical and timely resolution of set for the issuance of the Director’s the dispute.

Determination may be deferred to and (c) The certification required under included with the Director’s Deter- paragraph (b) of this section, shall in- mination.

(e) Extension by motion. A party shall clude a brief description of the party’s file a written motion for an extension efforts to obtain informal resolution of time not later than 3 business days but shall not include information on before the document is due unless good monetary or other settlement offers cause for the late filing is shown. A made but not agreed upon in writing by party filing a motion for extension all parties. Such efforts to resolve in- should attempt to obtain the concur- formally should be relatively recent rence of the opposing party. A party and be demonstrated by pertinent doc- filing a written motion for an exten- umentation. There is no required form sion of time shall file the motion as re- or process for informal resolution, but quired under § 16.13, and serve a copy of in each case the requirements to re- the motion on all parties and the dock- solve the matter informally must meet et clerk as required under § 16.15.

the requirements of this paragraph.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16–1, 78 FR 56143, Sept. 12, amended at Amdt. 16–1, 78 FR 56143, Sept. 12, 2013] 2013] Subpart C—Special Rules § 16.23 Pleadings.

Applicable to Complaints (a) A person directly and substan- tially affected by any alleged non- § 16.21 Pre-complaint resolution.

compliance or a person qualified under (a) Except for those persons filing 49 CFR 26.105(c) may file a complaint under 49 CFR 26.105(c), prior to filing a under this part. A person doing busi- complaint under this part, a person di- ness with an airport and paying fees or rectly and substantially affected by the rentals to the airport shall be consid- alleged noncompliance shall initiate ered directly and substantially affected and engage in good faith efforts to re- by alleged revenue diversion as defined solve the disputed matter informally in 49 U.S.C. 47107(b).

with those individuals or entities be- (b) Complaints filed under this part lieved responsible for the noncompli- shall— ance. These efforts at informal resolu- (1) State the name and address of tion may include, without limitation, at the parties’ expense, mediation, ar- each person who is the subject of the bitration, or the use of a dispute reso- complaint and, with respect to each lution board, or other form of third person, the specific provisions of each party assistance. The FAA Airports Act that the complainant believes were District Office, FAA Airports Field Of- violated; 14 CFR Ch. I (1–1–25 Edition) § 16.25 (2) Include all documents then avail- an Act or any regulation, order, agree- able in the exercise of reasonable dili- ment or document of conveyance gence, to be offered in support of the issued under the authority of an Act.

complaint, and to be served upon all (2) Except as otherwise provided by statute or rule, the proponent of a mo- persons named in the complaint as per- tion, request, or order has the burden sons responsible for the alleged ac- of proof.

tion(s) or omission(s) upon which the (3) A party who has asserted an af- complaint is based; firmative defense has the burden of (3) Provide a concise but complete proving the affirmative defense.

statement of the facts relied upon to (l) Except for good cause shown substantiate each allegation; and through motion and supporting docu- (4) Except for complaints filed under ments, discovery is not permitted ex- 49 CFR 26.105(c), describe how the com- cept as provided in §§ 16.213 and 16.215.

plainant was directly and substantially affected by the things done or omitted [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as to be done by the respondents.

amended at Amdt. 16–1, 78 FR 56143, Sept. 12, (c) Unless the complaint is dismissed 2013] pursuant to § 16.25 or § 16.27, the FAA § 16.25 Dismissals.

notifies the complainant and respond- ent in writing within 20 days after the (a) Within 20 days after the receipt of date the FAA receives the complaint the complaint, unless a motion has that the complaint has been docketed. been filed under § 16.26, the Director (d) The respondent shall file an an- will dismiss a complaint, or any claim swer within 20 days of the date of serv- made in a complaint, with prejudice if: ice of the FAA notification or, if a mo- (1) It appears on its face to be outside tion is filed under § 16.26, within 20 days the jurisdiction of the Administrator of the date of service of an FAA order under the Acts listed in § 16.1; denying all or part of that motion. (2) On its face it does not state a claim that warrants an investigation (e) The complainant may file a reply or further action by the FAA; or within 10 days of the date of service of (3) The complainant lacks standing the answer.

to file a complaint under §§ 16.3 and (f) The respondent may file a rebuttal 16.23.

within 10 days of the date of service of (b) A dismissal under this section the complainant’s reply.

will include the reasons for the dis- (g) The answer, reply, and rebuttal missal.

shall, like the complaint, be accom- panied by supporting documentation [Amdt. 16–1, 78 FR 56144, Sept. 12, 2013] upon which the parties rely.

(h) The answer shall deny or admit § 16.26 Motions to dismiss and motions for summary judgment.

the allegations made in the complaint or state that the person filing the doc- (a) In lieu of an answer, the respond- ument is without sufficient knowledge ent may file a motion to dismiss the or information to admit or deny an al- complaint or a motion for summary legation, and shall assert any affirma- judgment on the complaint. The re- tive defense.

spondent may move for dismissal of the (i) The answer, reply, and rebuttal entire complaint or move for dismissal shall each contain a concise but com- of particular issues from adjudication.

plete statement of the facts relied upon The motion must be filed within 20 to substantiate the answers, admis- days after the date of service of the sions, denials, or averments made.

FAA notification of docketing.

(j) Amendments or supplements to (b) Motions to dismiss. (1) A motion to the pleadings described in this section dismiss shall be accompanied by a con- will not be allowed without showing cise statement of the reasons for seek- good cause through a motion and sup- ing dismissal. The respondent must porting documents. show that the complaint should be dis- (k) Burden of proof. Except as used in missed, with prejudice, if: subpart F of this part, (i) It appears on its face to be outside (1) The burden of proof is on the com- the jurisdiction of the Administrator plainant to show noncompliance with under the Acts listed in § 16.1; Federal Aviation Administration, DOT § 16.29 (ii) On its face it does not state a contention that there is no genuine claim that warrants an investigation issue of material fact in dispute.

or further action by the FAA; or (3) A complainant may file an answer (iii) The complainant lacks standing to the motion for summary judgment to file a complaint under §§ 16.3 and within 10 days of the date the motion is 16.23.

served on the complainant, or within (2) A motion to dismiss may seek dis- any other period set by the Director.

missal of the entire complaint or the The answer shall be accompanied by a dismissal of specified claims in the concise statement of the material facts complaint. A motion to dismiss shall as to which the complainant contends be accompanied by a supporting memo- there is a genuine issue, and may be ac- randum of points and authorities. companied by affidavits and other doc- (3) A complainant may file an answer umentary evidence in support of that to the motion to dismiss within 10 days contention.

of the date the motion is served on the (4) Within 30 days of the date an an- complainant, or within any other pe- swer to a motion for summary judg- riod set by the Director. The answer ment is due under this section, the Di- shall be accompanied by a concise rector may issue an order disposing of statement of reasons for opposing dis- the motion. If the Director denies the missal, and may be accompanied by af- motion in whole or in part, or grants fidavits and other documentary evi- the motion in part, then within 20 days dence in support of that contention.

of when the order is served on the re- (4) Within 30 days of the date an an- spondent, the respondent shall file an swer to a motion to dismiss is due answer to the complaint.

under this section, the Director may (5) If the Director does not act on the issue an order disposing of the motion.

motion for summary judgment within If the Director denies the motion to 30 days of the date an answer to a mo- dismiss in whole or in part, or grants tion is due under this section, the re- the motion in part, then within 20 days spondent shall file an answer to the of when the order is served on the re- complaint within the next 20 days.

spondent, the respondent shall file an [Amdt. 16–1, 78 FR 56144, Sept. 12, 2013] answer to the complaint.

(5) If the Director does not act on the § 16.27 Incomplete complaints.

motion to dismiss within 30 days of the (a) If a complaint is not dismissed date an answer to a motion is due under this section, the respondent shall pursuant to § 16.25, but is deficient as to file an answer to the complaint within one or more of the requirements set the next 20 days. forth in § 16.21 or § 16.23(b), the Director will dismiss the complaint within 20 (c) Motions for summary judgment. (1) days after receiving it. Dismissal will A motion for summary judgment may be based upon the ground that there is be without prejudice to the refiling of no genuine issue of material fact for the complaint after amendment to cor- adjudication and that the complaint, rect the deficiencies. The Director’s when viewed in the light most favor- dismissal will include the reasons for able to the complainant, should be the dismissal.

summarily adjudicated in favor of the (b) Dismissals under this section are respondent as a matter of law. A mo- not initial determinations, and appeals tion for summary judgment may seek from decisions under this section will dismissal of the entire complaint or not be permitted.

dismissal of specified claims or issues [Amdt. 16–1, 78 FR 56144, Sept. 12, 2013] in the complaint.

(2) The motion for summary judg- § 16.29 Investigations.

ment shall be accompanied by a con- (a) If, based on the pleadings, there cise statement of the material facts as appears to be a reasonable basis for fur- to which the respondent contends there is no genuine issue of material fact. ther investigation, the FAA inves- The motion may include affidavits and tigates the subject matter of the com- documentary evidence in support of the plaint.

14 CFR Ch. I (1–1–25 Edition) § 16.31 (b) The investigation may include preponderance of the reliable, pro- one or more of the following, at the bative, and substantial evidence con- sole discretion of the FAA: tained in the record.

(1) A review of the written submis- (c) A party adversely affected by the sions or pleadings of the parties, as Director’s Determination may appeal supplemented by any informal inves- the initial determination as provided tigation the FAA considers necessary in § 16.33. However, if the Director’s De- and by additional information fur- termination that is appealed contains a nished by the parties at FAA request.

Corrective Action Plan, the Director In rendering its initial determination, has the discretion to suspend the Cor- the FAA may rely entirely on the com- rective Action Plan until the appeal is plaint and the responsive pleadings resolved.

provided under this subpart. Each (d) If the Director’s Determination party shall file documents that it con- finds the respondent in noncompliance siders sufficient to present all relevant and proposes the issuance of a compli- facts and argument necessary for the ance order, the initial determination FAA to determine whether the sponsor will include notice of opportunity for a is in compliance.

hearing under subpart F of this part if (2) Obtaining additional oral and doc- a hearing is required by statute or oth- umentary evidence by use of the agen- erwise provided by the FAA. A hearing cy’s authority to compel production of may be required by statute if the FAA such evidence under 49 U.S.C. 40113 and determination would terminate eligi- 46104, and 49 U.S.C. 47122. The Adminis- bility for grants under 49 U.S.C.

trator’s statutory authority to issue 47114(c) or (e), or terminate payments compulsory process has been delegated on a grant agreement under 49 U.S.C.

to the Chief Counsel, the Deputy Chief subchapter 471. The respondent may Counsel, the Assistant Chief Counsel elect or waive a hearing, as provided in for Airports and Environmental Law, subpart E of this part.

and each Assistant Chief Counsel for a (e) The Director will not consider re- region or center.

quests for rehearing, reargument, re- (3) Conducting or requiring that a consideration, or modification of a Di- sponsor conduct an audit of airport fi- rector’s Determination without a find- nancial records and transactions as ing of good cause.

provided in 49 U.S.C. 47107 and 47121.

[Amdt. 16–1, 78 FR 56145, Sept. 12, 2013] [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16–1 78 FR 56145, Sept. 12, § 16.33 Final decisions without hear- 2013] ing.

(a) The Associate Administrator may § 16.31 Director’s Determinations after investigations. transfer to the FAA Assistant Adminis- trator for Civil Rights the responsi- (a) After consideration of the plead- bility to prepare and issue Final Agen- ings and other information obtained by cy Decisions pursuant to this section the FAA after investigation, the Direc- for appeals with issues concerning civil tor will render an initial determination rights.

and serve it upon each party within 120 (b) The Associate Administrator will days of the date the last pleading speci- issue a final decision on appeal from fied in § 16.23 was due.

the Director’s Determination, without (b)(1) The Director’s Determination a hearing, where— shall include findings of fact and con- (1) The complaint is dismissed after clusions of law, accompanied by expla- investigation; nations and based upon all material (2) A hearing is not required by stat- issues of fact, credibility of the evi- ute and is not otherwise made avail- dence, law and discretion presented on able by the FAA; or the record, together with a statement of the reasons therefor. (3) The FAA provides opportunity for (2) The Director shall issue a deter- a hearing to the respondent and the re- mination or rule in a party’s favor only spondent waives the opportunity for a if the determination or ruling is in ac- hearing as provided in subpart E of this cordance with law and supported by a part.

Federal Aviation Administration, DOT § 16.103 (c) In the cases described in para- of a final order will be considered with- graph (b) of this section, within 30 days out a finding of good cause.

after the date of service of the initial [Amdt. 16–1, 78 FR 56145, Sept. 12, 2013] determination, a party adversely af- fected by the Director’s Determination § 16.34 Consent orders.

may file in accordance with § 16.13 and (a) The parties may agree at any serve in accordance with § 16.15 a simul- time before the issuance of a final taneous Notice of Appeal and Brief.

agency decision to dispose of the case (d) A reply to an appeal brief may be by proposing a consent order. Good filed within 20 days after the date of faith efforts to resolve a complaint service of the appeal.

through issuance of a consent order (e) On appeal, the Associate Adminis- may continue throughout the adminis- trator will consider the issues ad- trative process. However, except as dressed in any order on a motion to provided in § 16.11(a), such efforts may dismiss or motion for summary judg- not serve as the basis for extensions of ment and any issues accepted in the the times set forth in this part.

Director’s Determination using the fol- (b) A proposal for a consent order, lowing analysis: specified in paragraph (a) of this sec- (1) Are the findings of fact each sup- tion, shall include: ported by a preponderance of reliable, (1) A proposed consent order; probative, and substantial evidence (2) An admission of all jurisdictional contained in the record?

facts; and (2) Are conclusions made in accord- (3) An express waiver of the right to ance with law, precedent and policy?

further procedural steps and of all (3) Are the questions on appeal sub- rights of judicial review.

stantial?

(c) If the parties agree to dispose of a (4) Have any prejudicial errors oc- case by issuance of a consent order be- curred?

fore the FAA issues a Director’s Deter- (f) Any new issues or evidence pre- mination, the proposal for a consent sented in an appeal or reply will not be order is submitted jointly by the par- considered unless accompanied by a pe- ties to the Director, together with a re- tition and good cause found as to why quest to adopt the consent order and the new issue or evidence was not pre- dismiss the case. The Director may sented to the Director. Such a petition issue the consent order as an order of must: the FAA and terminate the proceeding.

(1) Set forth the new matter; [Amdt. 16–1, 78 FR 56145, Sept. 12, 2013] (2) Contain affidavits of prospective witnesses, authenticated documents, or Subpart D—Special Rules Applica- both, or an explanation of why such ble to Proceedings Initiated substantiation is unavailable; and (3) Contain a statement explaining by the FAA why such new issue or evidence could § 16.101 Basis for the initiation of not have been discovered in the exer- agency action.

cise of due diligence prior to the date The FAA may initiate its own inves- on which the evidentiary record closed.

tigation of any matter within the ap- (g) The Associate Administrator will plicability of this part without having issue a final decision and order within received a complaint. The investiga- 60 days after the due date of the reply.

tion may include, without limitation, (h) If no appeal is filed within the any of the actions described in time period specified in paragraph (c) § 16.29(b).

of this section, the Director’s Deter- mination becomes the final decision § 16.103 Notice of investigation.

and order of the FAA without further action. A Director’s Determination Following the initiation of an inves- that becomes final, because there is no tigation under § 16.101, the FAA sends a administrative appeal, is not judicially notice to the person(s) subject to inves- reviewable. tigation. The notice will set forth the (i) No requests for rehearing, reargu- areas of the agency’s concern and the ment, reconsideration, or modification reasons therefor; request a response to 14 CFR Ch. I (1–1–25 Edition) § 16.105 the notice within 30 days of the date of (iii) File, jointly with a complainant, service; and inform the respondent that a motion to withdraw the complaint the FAA will, in its discretion, invite and to dismiss the proposed compliance good faith efforts to resolve the mat- action; or ter.

(iv) Submit, jointly with the agency, a proposed consent order under § 16.105 Failure to resolve informally.

§ 16.34(c).

If the matters addressed in the FAA (2) If the respondent fails to file an notices are not resolved informally, the appeal in writing within the time peri- FAA may issue a Director’s Determina- ods provided in paragraph (c) of this tion under § 16.31. section, the Director’s Determination becomes final.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as (c) The Director may either direct amended at Amdt. 16–1, 78 FR 56146, Sept. 12, the respondent to submit a Corrective 2013] Action Plan or initiate proceedings to revoke and/or deny the respondent’s Subpart E—Proposed Orders of application for Airport Improvement Compliance Program discretionary grants under 49 U.S.C. 47115 and general aviation air- § 16.109 Orders terminating eligibility port grants under 49 U.S.C. 47114(d) for grants, cease and desist orders, and other compliance orders. when a Director’s Determination finds a respondent in noncompliance and (a) The agency will provide the op- does not provide for a hearing.

portunity for a hearing if, in the Direc- (d) In the event that the respondent tor’s determination, the agency issues fails to submit, in accordance with a or proposes to issue an order termi- Director’s Determination, a Corrective nating eligibility for grants pursuant Action Plan acceptable to the FAA to 49 U.S.C. 47106(d), an order sus- within the time provided, unless ex- pending the payment of grant funds tended by the FAA for good cause, and/ pursuant to 49 U.S.C. 47111(d); an order or if the respondent fails to complete withholding approval of any new appli- the Corrective Action Plan as specified cation to impose a passenger facility therein, the Director may initiate ac- charge pursuant to 49 U.S.C. 47111(e); a tion to revoke and/or deny applications cease and desist order; an order direct- for Airport Improvement Program dis- ing the refund of fees unlawfully col- cretionary grants under 49 U.S.C. 47115 lected; or any other compliance order and general aviation airport grants issued by the Administrator to carry under 49 U.S.C. 47114(d).

out the provisions of the Acts, and re- quired to be issued after notice and op- (e) For those violations that cannot portunity for a hearing. In cases in be remedied through corrective action, which a hearing is not required by stat- the Director may initiate action to re- ute, the FAA may provide opportunity voke and/or deny the respondent’s ap- for a hearing at its discretion. plications for Airport Improvement Program discretionary grants under 49 (b) In a case in which the agency pro- U.S.C. 47115 and general aviation air- vides the opportunity for a hearing, the port grants under 49 U.S.C. 47114(d).

Director’s Determination issued under § 16.31 will include a statement of the (f) When the Director concludes that availability of a hearing under subpart the respondent has fully complied with F of this part. the Corrective Action Plan and/or when (1) Within 20 days after service of a the Director determines that the re- Director’s Determination under § 16.31 spondent has corrected the areas of that provides an opportunity for a noncompliance, the Director will ter- hearing a person subject to the pro- minate the proceeding.

posed compliance order may— (g) A complainant’s standing termi- (i) Request a hearing under subpart F nates upon the issuance of a Director’s of this part; Determination that finds a respondent (ii) Waive hearing and appeal the Di- in noncompliance on all identified rector’s Determination in writing, as issues. The complainant may not ap- provided in § 16.33; peal the Director’s Determination if Federal Aviation Administration, DOT § 16.207 the Director finds noncompliance on (e) Rule on offers of proof; all identified issues. (f) Receive relevant and material evi- dence; [Amdt. 16–1, 78 FR 56146, Sept. 12, 2013] (g) Regulate the course of the hear- ing in accordance with the rules of this Subpart F—Hearings part to avoid unnecessary and duplica- tive proceedings in the interest of § 16.201 Notice and order of hearing.

prompt and fair resolution of the mat- (a) If a respondent is provided the op- ters at issue; portunity for hearing in an initial de- (h) Hold conferences to settle or to termination and does not waive hear- simplify the issues by consent of the ing, the Deputy Chief Counsel within 10 parties; days after the respondent elects a hear- (i) Dispose of procedural motions and ing will issue and serve on the respond- requests; ent and complainant a hearing order.

(j) Examine witnesses; and The hearing order will set forth: (k) Make findings of fact and conclu- (1) The allegations in the complaint, sions of law, and issue an initial deci- or notice of investigation, and the sion.

chronology and results of the inves- tigation preliminary to the hearing; § 16.203 Appearances, parties, and rights of parties.

(2) The relevant statutory, judicial, regulatory, and other authorities; (a) Appearances. Any party may ap- (3) The issues to be decided; pear and be heard in person.

(4) Such rules of procedure as may be (1) Any party may be accompanied, necessary to supplement the provisions represented, or advised by an attorney of this part; licensed by a State, the District of Co- (5) The name and address of the per- lumbia, or a territory of the United son designated as hearing officer, and States to practice law or appear before the assignment of authority to the the courts of that State or territory, or hearing officer to conduct the hearing by another person authorized by the in accordance with the procedures set hearing officer to be the party’s rep- forth in this part; and resentative.

(6) The date by which the hearing of- (2) An attorney, or other duly author- ficer is directed to issue an initial deci- ized representative, who represents a sion.

party shall file a notice of appearance (b) Where there are no genuine issues in accordance with § 16.13.

of material fact requiring oral exam- (b) Parties and agency participation. (1) ination of witnesses, the hearing order The parties to the hearing are the com- may contain a direction to the hearing plainant(s) and respondent(s) named in officer to conduct a hearing by submis- the hearing order, and the agency. The sion of briefs and oral argument with- style of any pleadings filed under this out the presentation of testimony or Subpart shall name the respondent as other evidence.

the Appellant, and the Federal Avia- tion Administration as the Agency.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as (2) Unless otherwise specified in the amended at Amdt. 16–1, 78 FR 56146, Sept. 12, hearing order, the agency attorney will 2013] serve as prosecutor for the agency from § 16.202 Powers of a hearing officer.

the date of issuance of the Director’s Determination providing an oppor- In accordance with the rules of this tunity for hearing.

subpart, a hearing officer may: (a) Give notice of, and hold, pre- [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as hearing conferences and hearings; amended at Amdt. 16–1, 78 FR 56146, Sept. 12, (b) Administer oaths and affirma- 2013] tions; § 16.207 Intervention and other par- (c) Issue subpoenas authorized by law ticipation.

and issue notices of deposition re- quested by the parties; (a) Intervention and participation by (d) Limit the frequency and extent of other persons are permitted only at the discovery; hearing stage of the complaint process 14 CFR Ch. I (1–1–25 Edition) § 16.209 and with the written approval of the motion for an extension of time shall hearing officer. serve a copy of the motion on each (b) A person may submit a written party.

motion for leave to intervene as a (c) Failure to rule. If the hearing offi- party. Except for good cause shown, a cer fails to rule on a written motion for motion for leave to intervene shall be an extension of time by the date the submitted not later than 10 days after document was due, the motion for an the notice of hearing and hearing extension of time is deemed denied.

order.

(d) Effect on time limits. In a hearing (c) If the hearing officer finds that required by section 519(b) of the Air- intervention will not unduly broaden port and Airways Improvement Act, as the issues or delay the proceedings and, amended in 1987, 49 U.S.C. 47106(e) and if the person has an interest that will 47111(d), the due date for the hearing benefit the proceedings, the hearing of- officer’s initial decision and for the ficer may grant a motion for leave to final agency decision are extended by intervene. The hearing officer may de- the length of the extension granted by termine the extent to which an inter- the hearing officer only if the hearing venor may participate in the pro- officer grants an extension of time as a ceedings.

result of an agreement by the parties (d) Other persons may petition the hearing officer for leave to participate as specified in paragraph (a) of this sec- in the hearing. Participation is limited tion or, if the hearing officer grants an to the filing of a posthearing brief and extension of time as a result of the reply to the hearing officer and the As- sponsor’s failure to adhere to the hear- sociate Administrator. Such a brief ing schedule. In any other hearing, an shall be filed and served on all parties extension of time granted by the hear- in the same manner as the parties’ ing officer for any reason extends the posthearing briefs are filed.

due date for the hearing officer’s ini- (e) Participation under this section is tial decision and for the final agency at the discretion of the hearing officer, decision by the length of time of the and no decision permitting participa- hearing officer’s decision.

tion shall be deemed to constitute an expression that the participant has § 16.211 Prehearing conference.

such a substantial interest in the pro- (a) Prehearing conference notice. The ceeding as would entitle it to judicial hearing officer schedules a prehearing review of such decision.

conference and serves a prehearing con- [Amdt. 16–1, 78 FR 56146, Sept. 12, 2013] ference notice on the parties promptly after being designated as a hearing of- § 16.209 Extension of time.

ficer.

(a) Extension by oral agreement. The (1) The prehearing conference notice parties may agree to extend for a rea- specifies the date, time, place, and sonable period of time for filing a docu- manner (in person or by telephone) of ment under this part. If the parties the prehearing conference.

agree, the hearing officer shall grant (2) The prehearing conference notice one extension of time to each party.

may direct the parties to exchange pro- The party seeking the extension of posed witness lists, requests for evi- time shall submit a draft order to the dence and the production of documents hearing officer to be signed by the in the possession of another party, re- hearing officer and filed with the hear- sponses to interrogatories, admissions, ing docket. The hearing officer may proposed procedural schedules, and pro- grant additional oral requests for an posed stipulations before the date of extension of time where the parties the prehearing conference.

agree to the extension.

(b) The prehearing conference. The pre- (b) Extension by motion. A party shall hearing conference is conducted by file a written motion for an extension telephone or in person, at the hearing of time with the hearing officer not later than 7 days before the document officer’s discretion. The prehearing is due unless good cause for the late fil- conference addresses matters raised in ing is shown. A party filing a written the prehearing conference notice and Federal Aviation Administration, DOT § 16.215 such other matters as the hearing offi- (2) The deposition is deemed nec- cer determines will assist in a prompt, essary to perpetuate the testimony of full and fair hearing of the issues. the witness; or (c) Prehearing conference report. At (3) The taking of the deposition is the close of the prehearing conference, necessary to prevent undue and exces- the hearing officer rules on any re- sive expense to a party and will not re- quests for evidence and the production sult in undue burden to other parties or of documents in the possession of other in undue delay.

parties, responses to interrogatories, (b) Application for deposition. Any and admissions; on any requests for party desiring to take the deposition of depositions; on any proposed stipula- a witness shall make application there- tions; and on any pending applications for to the hearing officer in writing, for subpoenas as permitted by § 16.219.

with a copy of the application served In addition, the hearing officer estab- on each party. The application shall in- lishes the schedule, which shall provide clude: for the issuance of an initial decision (1) The name and residence of the not later than 110 days after issuance witness; of the Director’s Determination order (2) The time and place for the taking unless otherwise provided in the hear- of the proposed deposition; ing order.

(3) The reasons why such deposition [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as should be taken; and amended at Amdt. 16–1, 78 FR 56147, Sept. 12, (4) A general description of the mat- 2013] ters concerning which the witness will be asked to testify.

§ 16.213 Discovery.

(c) Order authorizing deposition. If (a) Discovery is limited to requests good cause is shown, the hearing offi- for admissions, requests for production cer, in his or her discretion, issues an of documents, interrogatories, and order authorizing the deposition and depositions as authorized by § 16.215.

specifying the name of the witness to (b) The hearing officer shall limit the be deposed, the location and time of frequency and extent of discovery per- the deposition and the general scope mitted by this section if a party shows and subject matter of the testimony to that— be taken.

(1) The information requested is cu- (d) Procedures for deposition. (1) Wit- mulative or repetitious; nesses whose testimony is taken by (2) The information requested may be deposition shall be sworn or shall af- obtained from another less burdensome firm before any questions are put to and more convenient source; them. Each question propounded shall (3) The party requesting the informa- be recorded and the answers of the wit- tion has had ample opportunity to ob- ness transcribed verbatim.

tain the information through other dis- (2) Objections to questions or evi- covery methods permitted under this dence shall be recorded in the tran- section; or script of the deposition. The inter- (4) The method or scope of discovery posing of an objection shall not relieve requested by the party is unduly bur- the witness of the obligation to answer densome or expensive.

questions, except where the answer § 16.215 Depositions.

would violate a privilege.

(3) The written transcript shall be (a) General. For good cause shown, subscribed by the witness, unless the the hearing officer may order that the parties by stipulation waive the sign- testimony of a witness may be taken ing, or the witness is ill, cannot be by deposition and that the witness found, or refuses to sign. The reporter produce documentary evidence in con- shall note the reason for failure to nection with such testimony. Gen- sign.

erally, an order to take the deposition of a witness is entered only if: (e) Depositions of agency employees. (1) (1) The person whose deposition is to Depositions of Agency Employees will be taken would be unavailable at the not be allowed except under the provi- hearing; sions of 49 CFR part 9.

14 CFR Ch. I (1–1–25 Edition) § 16.217 (2) Such depositions will be allowed certified mail, the date of mailing shall only with the specific written permis- be considered as the time when service sion of the Chief Counsel or his or her is made.

designee. (3) A subpoena issued under this part is effective throughout the United [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as States or any territory or possession amended at Amdt. 16–1, 78 FR 56147, Sept. 12, thereof.

2013] (c) Motions to quash or modify sub- § 16.217 Witnesses. poena. (1) A party or any person upon whom a subpoena has been served may (a) Each party may designate as a file a motion to quash or modify the witness any person who is able and subpoena with the hearing officer at or willing to give testimony that is rel- before the time specified in the sub- evant and material to the issues in the poena for the filing of such motions.

hearing case, subject to the limitation The applicant shall describe in detail set forth in paragraph (b) of this sec- the basis for the application to quash tion.

or modify the subpoena including, but (b) The hearing officer may exclude not limited to, a statement that the testimony of witnesses that would be testimony, document, or tangible evi- irrelevant, immaterial, or unduly rep- dence is not relevant to the proceeding, etitious.

that the subpoena is not reasonably (c) Any witness may be accompanied tailored to the scope of the proceeding, by counsel. Counsel representing a or that the subpoena is unreasonable nonparty witness has no right to exam- and oppressive.

ine the witness or otherwise partici- (2) A motion to quash or modify the pate in the development of testimony.

subpoena stays the effect of the sub- § 16.219 Subpoenas.

poena pending a decision by the hear- ing officer on the motion.

(a) Request for subpoena. A party may apply to the hearing officer, within the § 16.221 Witness fees.

time specified for such applications in (a) The party on whose behalf a wit- the prehearing conference report, for a ness appears is responsible for paying subpoena to compel testimony at a any witness fees and mileage expenses.

hearing or to require the production of (b) Except for employees of the documents only from the following per- United States summoned to testify as sons: to matters related to their public em- (1) Another party; ployment, witnesses summoned by sub- (2) An officer, employee, or agent of poena shall be paid the same fees and another party; mileage expenses as are paid to a wit- (3) Any other person named in the ness in a court of the United States in complaint as participating in or bene- comparable circumstances.

fiting from the actions of the respond- ent alleged to have violated any Act; § 16.223 Evidence.

(4) An officer, employee, or agent of any other person named in the com- (a) General. A party may submit di- plaint as participating in or benefiting rect and rebuttal evidence in accord- from the actions of the respondent al- ance with this section.

leged to have violated any Act. (b) Requirement for written testimony (b) Issuance and service of subpoena. and evidence. Except in the case of evi- (1) The hearing officer issues the sub- dence obtained by subpoena, or in the poena if the hearing officer determines case of a special ruling by the hearing that the evidence to be obtained by the officer to admit oral testimony, a par- subpoena is relevant and material to ty’s direct and rebuttal evidence shall the resolution of the issues in the case. be submitted in written form in ad- (2) Subpoenas shall be served by per- vance of the oral hearing pursuant to sonal service, or upon an agent des- the schedule established in the hearing ignated in writing for the purpose, or officer’s prehearing conference report.

by certified mail, return receipt ad- Written direct and rebuttal fact testi- dressed to such person or agent. When- mony shall be certified by the witness ever service is made by registered or as true and correct. Subject to the Federal Aviation Administration, DOT § 16.233 same exception (for evidence obtained mation, or is otherwise prohibited by by subpoena or subject to a special rul- law.

ing by the hearing officer), oral exam- § 16.227 Standard of proof.

ination of a party’s own witness is lim- ited to certification of the accuracy of The hearing officer shall issue an ini- tial decision or rule in a party’s favor written evidence, including correction only if the decision or ruling is in ac- and updating, if necessary, and reexam- cordance with law and supported by a ination following cross-examination by preponderance of the reliable, pro- other parties.

bative, and substantial evidence con- (c) Subpoenaed testimony. Testimony tained in the record.

of witnesses appearing under subpoena may be obtained orally.

[Amdt. 16–1, as amended at 78 FR 56147, Sept.

(d) Cross-examination. A party may 12, 2013] conduct cross-examination that may be § 16.229 Burden of proof.

required for disclosure of the facts, subject to control by the hearing offi- As used in this subpart, the burden of cer for fairness, expedition and exclu- proof is as follows: sion of extraneous matters.

(a) The burden of proof of noncompli- (e) Hearsay evidence. Hearsay evi- ance with an Act or any regulation, dence is admissible in proceedings gov- order, agreement or document of con- erned by this part. The fact that evi- veyance issued under the authority of dence is hearsay goes to the weight of an Act is on the agency.

evidence and does not affect its admis- (b) Except as otherwise provided by sibility. statute or rule, the proponent of a mo- tion, request, or order has the burden (f) Admission of evidence. The hearing of proof.

officer admits evidence introduced by a (c) A party who has asserted an af- party in support of its case in accord- firmative defense has the burden of ance with this section, but may ex- proving the affirmative defense.

clude irrelevant, immaterial, or unduly repetitious evidence.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as (g) Expert or opinion witnesses. An em- amended at Amdt. 16–1, 78 FR 56147, Sept. 12, 2013] ployee of the FAA or DOT may not be called as an expert or opinion witness § 16.231 Offer of proof.

for any party other than the agency ex- cept as provided in Department of A party whose evidence has been ex- Transportation regulations at 49 CFR cluded by a ruling of the hearing offi- part 9. cer may offer the evidence on the record when filing an appeal.

§ 16.225 Public disclosure of evidence.

§ 16.233 Record.

(a) Except as provided in this section, (a) Exclusive record. The transcript of the hearing shall be open to the public.

all testimony in the hearing, all exhib- (b) The hearing officer may order its received into evidence, all motions, that any information contained in the applications requests and rulings, all record be withheld from public disclo- documents included in the hearing sure. Any person may object to disclo- record and the Director’s Determina- sure of information in the record by fil- tion shall constitute the exclusive ing a written motion to withhold spe- record for decision in the proceedings cific information with the hearing offi- and the basis for the issuance of any cer. The person shall state specific orders.

grounds for nondisclosure in the mo- (b) Examination and copy of record. A tion.

copy of the record will be filed by the (c) The hearing officer shall grant the FAA Part 16 Docket Clerk in the Fed- motion to withhold information from eral Docket Management System public disclosure if the hearing officer (FDMS). Any person desiring to review determines that disclosure would be in the record may then do so at http:// violation of the Privacy Act, would re- www.regulations.gov.

veal trade secrets or privileged or con- fidential commercial or financial infor- [Amdt. 16–1, 78 FR 56147, Sept. 12, 2013] 14 CFR Ch. I (1–1–25 Edition) § 16.235 date the initial decision is issued. Each § 16.235 Argument before the hearing officer. party may file a reply to an appeal within 10 days after it is served on the (a) Argument during the hearing. Dur- party. Filing and service of appeals and ing the hearing, the hearing officer replies shall be by personal delivery.

shall give the parties reasonable oppor- (c) If an appeal is filed, the Associate tunity to present oral argument on the Administrator reviews the entire record supporting or opposing motions, record and issues a final agency deci- objections, and rulings if the parties sion and order within 60 days of the due request an opportunity for argument.

date of the reply. If no appeal is filed, The hearing officer may direct written the Associate Administrator may take argument during the hearing if the review of the case on his or her own hearing officer finds that submission of motion. If the Associate Administrator written arguments would not delay the finds that the respondent is not in hearing.

compliance with any Act or any regu- (b) Posthearing briefs. The hearing of- lation, agreement, or document of con- ficer may request or permit the parties veyance issued or made under such to submit posthearing briefs. The hear- Act, the final agency order includes, in ing officer may provide for the filing of accordance with § 16.245(d), a statement simultaneous reply briefs as well, if of corrective action, if appropriate, and such filing will not unduly delay the identifies sanctions for continued non- issuance of the hearing officer’s initial compliance.

decision. Posthearing briefs shall in- (d) If no appeal is filed, and the Asso- clude proposed findings of fact and con- ciate Administrator does not take re- clusions of law; exceptions to rulings of view of the initial decision on the Asso- the hearing officer; references to the ciate Administrator’s own motion, the record in support of the findings of initial decision shall take effect as the fact; and supporting arguments for the final agency decision and order on the proposed findings, proposed conclu- sixteenth day after the actual date the sions, and exceptions.

initial decision is issued.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as (e) The failure to file an appeal is amended at Amdt. 16–1, 78 FR 56147, Sept. 12, deemed a waiver of any rights to seek 2013] judicial review of an initial decision that becomes a final agency decision § 16.237 Waiver of procedures.

by operation of paragraph (d) of this (a) The hearing officer shall waive section.

such procedural steps as all parties to the hearing agree to waive before [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16–1, 78 FR 56147, Sept. 12, issuance of an initial decision.

2013] (b) Consent to a waiver of any proce- dural step bars the raising of this issue § 16.243 Consent orders.

on appeal.

(c) The parties may not by consent (a) The agency attorney and the re- waive the obligation of the hearing of- spondents may agree at any time be- ficer to enter an initial decision on the fore the issuance of a final decision and record. order to dispose of the case by issuance of a consent order. Good faith efforts to § 16.241 Initial decisions, order, and resolve a complaint through issuance appeals.

of a consent order may continue (a) The hearing officer shall issue an throughout the administrative process.

initial decision based on the record de- Except as provided in § 16.209, such ef- veloped during the proceeding and shall forts may not serve as the basis for ex- send the initial decision to the parties tensions of the times set forth in this not later than 110 days after the Direc- part.

tor’s Determination unless otherwise (b) A proposal for a consent order, provided in the hearing order. specified in paragraph (a) of this sec- (b) Each party adversely affected by tion, shall include: the hearing officer’s initial decision (1) A proposed consent order; may file an appeal with the Associate (2) An admission of all jurisdictional Administrator within 15 days of the facts; Federal Aviation Administration, DOT § 16.245 (3) An express waiver of the right to (2) Remand the proceeding for any further procedural steps and of all such purpose as the Associate Adminis- rights of judicial review; and trator may deem necessary.

(c) If the Associate Administrator (4) The hearing order, if issued, and takes review of the hearing officer’s an acknowledgment that the hearing initial decision on the Associate Ad- order may be used to construe the ministrator’s own motion, the Asso- terms of the consent order.

ciate Administrator will issue a notice (c) If the issuance of a consent order of review within 20 days of the actual has been agreed upon by all parties to date the initial decision is issued.

the hearing, the proposed consent order (1) The notice sets forth the specific shall be filed with the hearing officer, findings of fact and conclusions of law along with a draft order adopting the in the initial decision that are subject consent decree and dismissing the case, to review by the Associate Adminis- for the hearing officer’s adoption.

trator.

(d) The deadline for the hearing offi- (2) Parties may file one brief on re- cer’s initial decision and the final view to the Associate Administrator or agency decision is extended by the rely on their posthearing brief to the amount of days elapsed between the fil- hearing officer. A brief on review shall ing of the proposed consent order with be filed not later than 10 days after the hearing officer and the issuance of service of the notice of review. Filing the hearing officer’s order continuing and service of a brief on review shall be the hearing.

by personal delivery.

(e) If the agency attorney and spon- (3) The Associate Administrator sor agree to dispose of a case by issues a final agency decision and order issuance of a consent order before the within 30 days of the due date of the FAA issues a hearing order, the pro- brief. If the Associate Administrator posal for a consent order is submitted finds that the respondent is not in jointly to the official authorized to compliance with any Act or any regu- issue a hearing order, together with a lation, agreement or document of con- request to adopt the consent order and veyance issued under such Act, the dismiss the case. The official author- final agency order includes a statement ized to issue the hearing order issues of corrective action, if appropriate.

the consent order as an order of the (d) When the final agency decision FAA and terminates the proceeding. finds a respondent in noncompliance, and where a respondent fails to prop- [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as erly seek judicial review of the final amended at Amdt. 16–1, 78 FR 56147, Sept. 12, agency decision as set forth in subpart 2013] G of this part, the Associate Adminis- trator will issue an order remanding § 16.245 Associate Administrator re- the case to the Director for the fol- view after a hearing.

lowing action: (a) The Associate Administrator may (1) In the event that the respondent transfer to the FAA Assistant Adminis- fails to submit, in accordance with the trator for Civil Rights the authority to final agency decision, a Corrective Ac- prepare and issue Final Agency Deci- tion Plan acceptable to the FAA within sions pursuant to § 16.241 for appeals the time provided, unless extended by from a hearing concerning civil rights the FAA for good cause, and/or if the issues.

respondent fails to complete the Cor- (b) After a hearing is held, and, after rective Action Plan as specified there- considering the issues as set forth in in, the Director may initiate action to § 16.245(e), if the Associate Adminis- revoke and/or deny applications for trator determines that the hearing offi- Airport Improvement Program grants cer’s initial decision or order should be issued under 49 U.S.C. 47114(c)–(e) and changed, the Associate Administrator 47115. When the Director concludes may: that the respondent has fully complied (1) Make any necessary findings and with the Corrective Action Plan, the issue an order in lieu of the hearing of- Director will issue an Order termi- ficer’s initial decision or order, or nating the proceeding.

14 CFR Ch. I (1–1–25 Edition) § 16.247 (2) For those violations that cannot 47111(d). A party seeking judicial re- be remedied through corrective action, view shall file a petition for review the Director may initiate action to re- with the Court not later than 60 days voke and/or deny the respondent’s ap- after the order has been served on the plications for Airport Improvement party or within 60 days after the entry Program grants issued under 49 U.S.C. of an order under 49 U.S.C. 46110.

47114(c)–(e) and 47115. (b) The following do not constitute (e) On appeal from a hearing officer’s final decisions and orders subject to ju- initial decision, the Associate Adminis- dicial review: trator will consider the following ques- (1) An FAA decision to dismiss a tions: complaint without prejudice, as set (1) Are the findings of fact each sup- forth in § 16.27; (2) A Director’s Determination; ported by a preponderance of reliable, probative and substantial evidence? (3) An initial decision issued by a (2) Are conclusions made in accord- hearing officer at the conclusion of a ance with law, precedent and policy? hearing; (3) Are the questions on appeal sub- (4) A Director’s Determination or an stantial? initial decision of a hearing officer be- (4) Have any prejudicial errors oc- comes the final decision of the Asso- curred? ciate Administrator because it was not (f) Any new issues or evidence pre- appealed within the applicable time pe- sented in an appeal or reply will not be riods provided under §§ 16.33(c) and allowed unless accompanied by a cer- 16.241(b).

tified petition and good cause found as [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- to why the new matter was not pre- designated and amended by Amdt. 16–1, 78 FR sented to the Director. Such a petition 56148, Sept. 12, 2013] must: (1) Set forth the new issues or evi- Subpart H—Ex Parte dence; Communications (2) Contain affidavits of prospective witnesses, authenticated documents, or S OURCE : Docket No. 27783, 61 FR 54004, Oct.

both, or an explanation of why such 16, 1996, unless otherwise noted. Redesig- substantiation is unavailable; and nated at 78 FR 56148, Sept. 12, 2013.

(3) Contain a statement explaining why such new matter could not have § 16.301 Prohibited ex parte commu- been discovered in the exercise of due nications.

diligence prior to the date on which the (a) The prohibitions of this section evidentiary record closed.

shall apply from the time a proceeding (g) A Final Agency Decision may be is noticed for hearing unless the person appealed in accordance with subpart G responsible for the communication has of this part.

knowledge that it will be noticed, in [Amdt. 16–1, 78 FR 56147, Sept. 12, 2013] which case the prohibitions shall apply at the time of the acquisition of such knowledge.

Subpart G—Judicial Review (b) Except to the extent required for the disposition of ex parte matters as S OURCE : Docket No. 27783, 61 FR 54004, Oct.

authorized by law: 16, 1996, unless otherwise noted. Redesig- (1) No interested person outside the nated by Amdt. 16–1, 78 FR 56148, Sept. 12, 2013. FAA and no FAA employee partici- pating as a party shall make or know- § 16.247 Judicial review of a final deci- ingly cause to be made to any sion and order.

decisional employee an ex parte com- (a) A person may seek judicial re- munication relevant to the merits of view, in a United States Court of Ap- the proceeding; peals, of a final decision and order of (2) No FAA employee shall make or the Associate Administrator, and of an knowingly cause to be made to any in- order of dismissal with prejudice issued terested person outside the FAA an ex by the Director, as provided in 49 parte communication relevant to the U.S.C. 46110 or 49 U.S.C. 47106(d) and merits of the proceeding; or

Federal Aviation Administration, DOT Pt. 17 (3) Ex parte communications regard- PART 17—PROCEDURES FOR PRO- ing solely matters of agency procedure TESTS AND CONTRACT DISPUTES or practice are not prohibited by this section.

Subpart A—General [Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- Sec.

designated at Amdt. 16–1, 78 FR 56148, Sept.

17.1 Applicability.

12, 2013] 17.3 Definitions.

17.5 Delegation of authority.

§ 16.303 Procedures for handling ex 17.7 Filing and computation of time.

parte communications.

17.9 Protective orders.

A decisional employee who receives Subpart B—Protests or who makes or knowingly causes to be made a communication prohibited 17.11 Matters not subject to protest.

by § 16.303 shall place in the public 17.13 Dispute resolution process for pro- record of the proceeding: tests.

17.15 Filing a protest.

(a) All such written communications; 17.17 Initial protest procedures.

(b) Memoranda stating the substance 17.19 Motions practice and dismissal or of all such oral communications; and summary decision of protests.

(c) All written responses, and memo- 17.21 Adjudicative Process for protests.

randa stating the substance of all oral 17.23 Protest remedies.

responses, to the materials described in Subpart C—Contract Disputes paragraphs (a) and (b) of this section.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- 17.25 Dispute resolution process for con- tract disputes.

designated at Amdt. 16–1, 78 FR 56148, Sept.

17.27 Filing a contract dispute.

12, 2013] 17.29 Informal resolution period.

17.31 Dismissal or summary decision of con- § 16.305 Requirement to show cause tract disputes.

and imposition of sanction.

17.33 Adjudicative Process for contract dis- (a) Upon receipt of a communication putes.

knowingly made or knowingly caused to be made by a party in violation of Subpart D—Alternative Dispute Resolution § 16.303, the Associate Administrator or 17.35 Use of alternative dispute resolution.

his designee or the hearing officer may, 17.37 Election of alternative dispute resolu- to the extent consistent with the inter- tion process.

ests of justice and the policy of the un- 17.39 Confidentiality of ADR.

derlying statutes, require the party to Subpart E—Finality and Review show cause why his or her claim or in- terest in the proceeding should not be 17.41 Final orders.

dismissed, denied, disregarded, or oth- 17.43 Judicial review.

erwise adversely affected on account of 17.45 Conforming amendments.

such violation.

17.47 Reconsideration.

(b) The Associate Administrator Subpart F—Other Matters may, to the extent consistent with the interests of justice and the policy of 17.49 Sanctions.

the underlying statutes administered 17.51 Decorum and professional conduct.

by the FAA, consider a violation of 17.53 Orders and subpoenas for testimony this subpart sufficient grounds for a de- and document production.

17.55 Standing orders of the ODRA director.

cision adverse to a party who has knowingly committed such violation or Subpart G—Pre-Disputes knowingly caused such violation to occur.

17.57 Dispute resolution process for Pre-dis- putes.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re- 17.59 Filing a Pre-dispute.

designated at Amdt. 16–1, 78 FR 56148, Sept.

17.61 Use of alternative dispute resolution.

12, 2013] A PPENDIX A TO P ART 17—A LTERNATIVE D IS - PUTE R ESOLUTION (ADR)